M.M. Sharma & Ors. vs The Directorate Of Education & ...
2010 Latest Caselaw 3016 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P.(C) 2612/1998

%                                                      Date of decision: 1st July, 2010

M.M. SHARMA & ORS.                                                  ..... Petitioners
                                 Through:        Ms. Amrita Sharma, Advocate.

                                              Versus

THE DIRECTORATE OF EDUCATION & ANR.           ..... Respondents
                  Through:  Mr. Arvind Gopal, Advocate for R-1.
                            Mr. R.M. Sinha, Advocate for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                                YES

2.       To be referred to the reporter or not?                         YES

3.       Whether the judgment should be reported                        YES
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The three petitioners, being the employees of the respondent no.2 Vaishali

International Public School, a recognized unaided private school within the

meaning of The Delhi School Education Act, 1973, by this writ petition seek a

declaration that the letters dated 2nd / 3rd March, 1998 submitted by them, of

resignation from the respondent no.2 school, are void and inconsequential and a

mandamus directing the respondent no.2 school to treat the petitioners to be in

continuous service and entitled to protection of pay and all other benefits. The

petitioners claim that during March, 1998 the Chairman of the respondent no.2

school told them that the school would be shut down by 31st March, 1998 and they

would be relocated in other branches of the school; on such

representation/assurance, their signatures on the resignation letters were taken and

which they signed in good faith; however the respondent no.2 school failed to

accommodate the petitioners in the other branches and as such the petitioners on

7th April, 1998 withdrew their letters of resignation dated 2nd / 3rd March, 1998.

The petitioners contend that under Rule 114A of The Delhi School Education

Rules, 1973, the resignation of an employee of a recognized school is to be

accepted within a period of 30 days from the date of the receipt of the resignation

by the Managing Committee with the prior approval of the Director. The

petitioners contend that the respondent no.2 school on 10th March, 1998 had

sought such approval from the respondent no.1 Directorate of Education (DOE)

and which approval was declined vide letter dated 6th May, 1998. The contention

of the petitioners is that since their resignations dated 2nd / 3rd March, 1998 could

not have been accepted by the respondent no.2 school without the approval of the

DOE and which approval had not been received till 7th April, 1998, when the

resignations were withdrawn, the resignations were withdrawn before acceptance,

as is permissible in law and the respondent no.2 school cannot avail itself of any

benefit from the said resignations.

2. The respondent no.2 school in the counter affidavit has relied upon the

proviso to Rule 114A (supra) to the effect that if no approval is received within 30

days, then such approval would be deemed to have been received after the expiry

of the said period. It is thus contended that the letter dated 6th May, 1998 declining

the approval, issued after the expiry of 30 days, is of no avail in as much as on the

expiry of the said 30 days, there was deemed approval of the DOE.

3. The writ petition was dismissed vide order dated 5th July, 2000. The

petitioners preferred an intra Court appeal being WA No.566/2000. The Division

Bench vide order dated 19th August, 2004 in the appeal remanded the matter for

fresh consideration.

4. The relief claimed by the petitioners of reinstatement in the respondent no.2

school is now not possible. The respondent no.2 school had filed W.P.(C)

No.4855/1998 challenging the order of the DOE refusing permission to the

respondent no.2 school to shut down. A Single Judge of this Court vide order

dated 25th May, 2005 set aside the decision of DOE and allowed the school to shut

down and gave liberty to the teachers of the school to seek their remedy against

the school. The Association of Teachers of the respondent no.2 school preferred an

LPA No.1721/2005 against the said order. The Division Bench vide judgment

dated 18th August, 2006 allowed the appeal and held the writ petition WP(C) No.

4855/1998 (supra) liable to be dismissed. However, since in the interregnum, the

premises wherefrom the respondent no.2 school was operating had been sold off,

the Division Bench granted the relief to the said teachers, not of reinstatement but

of payment of the arrears of salaries and other statutory dues in terms thereof. In

view of the said judgment, the reinstatement of the petitioners in any case is not

possible. If the petitioners succeed in establishing that their resignations validly

stood withdrawn, the petitioners would be entitled to the benefit of the said

judgment. However, if the petitioners are found to have resigned, they would not

be entitled to the benefit of the said judgment of the Division Bench.

5. It may also be recorded that the respondent no.2 school in the counter

affidavit in this writ petition has sought to contend that it is a minority school and

hence Rule 114A was not applicable to it. However, the Division Bench in the

judgment aforesaid had negatived the said plea of the respondent no.2 school. It

may also be recorded that the respondent no.2 school, besides on the letters of

resignation, has also sought to rely on certain documents of settlement of accounts

with the petitioners. However, the said documents have been denied by the

petitioners and no adjudication with respect to the said plea in any case can be

undertaken in the writ jurisdiction.

6. Since the filing of the writ petition and the order aforesaid in appeal, a

Division Bench of this Court in Kathuria Public School Vs. Director of

Education 2005 VI AD (Delhi) 893 has held that Section 8(2) & (4) & (5) of the

School Act and Rules 115(2)&(5), Rule 120 (1) (d) (iii)&(iv) & Rule 120 (2) of

the School Rules requiring prior or ex-post facto approval for disciplinary

proceedings would have no application to private unaided recognized schools.

Though Rule 114A requiring a recognized school to accept resignation submitted

by any employee only with the approval of the Director, does not find mention in

the judgment in Kathuria Public School (supra) but the reasoning therein, for

holding the aforesaid provisions of the School Act and the Rules requiring

approval of the DOE to be not applicable to unaided recognized schools, would

apply to Rule 114A also. Once it is held that the respondent no.2 school was not

required to obtain any approval of the DOE prior to accepting the resignation of

the petitioners, then the edifice of the writ petition falls. It is mentioned in the

letter dated 10th March, 1998 of the respondent no.2 school seeking approval of

the DOE that the Managing Committee of the respondent no.2 school has accepted

the respective resignations tendered by the petitioners and for this reason only the

approval was being sought. The withdrawal of the resignations on 7th April, 1998

is clearly of a date after the resignations had been accepted. The writ petition is

liable to fail for this reason only.

7. I find that in Mrs. Mala Tandon Thukral Vs. Director of Education 167

(2010) DLT 46 an argument was raised before a Single Judge of this Court for

inapplicability of Rule 114A to an unaided recognized school because of the

judgment of the Division Bench in Kathuria Public School. However, the matter

was decided without considering the impact of Kathuria Public School. The

matter having not been considered in the light of Kathuria Public School, the

same is not considered as a precedent for the present purposes.

8. I may notice that the parties have also agitated qua the interpretation of

Rule 114A. However, in view of the same being not applicable to the respondent

no.2 school as aforesaid, the said decision is not necessary.

9. The question of very maintainability of this writ petition was also in issue

owing to the remedy of appeal before the Delhi School Tribunal constituted under

Section 11 of the School Act. Whereas, the counsel for the respondent no.2 school

contends that the ambit of the jurisdiction of the Tribunal (supra) has been

considerably widened vide the judgment in Kathuria Public School, the counsel

for the petitioners relies upon Sonica Jaggi Vs. Lt. Governor 152 (2008) DLT

601. I find the Supreme Court in Shashi Gaur Vs. NCT of Delhi (2001) 10 SCC

445 to have unequivocally held that the Tribunal has jurisdiction in all matters of

termination of services of the employees of the school, whether by way of

removal, dismissal, reduction in rank or even otherwise. Though Shashi Gaur

(supra) was noticed in Sonica Jaggi (supra) case but the Division Bench of this

Court in Sonica Jaggi only observed that grievances like fixation of salary cannot

be the subject matter of an appeal before the Tribunal. The present is however not

such a case and even if the averments of the petitioners are to be believed, is a case

of illegal removal from service.

10. Though on account of the view taken hereinabove qua applicability of Rule

114A to unaided recognized schools, that dispute is not required to go to the

Tribunal but the petitioners have also pleaded that the resignation letters were

obtained from them by misrepresentation. If that be the case of the petitioners,

then notwithstanding the dismissal of this writ petition, the petitioners would be

entitled to approach the Tribunal. The School Act provides a limitation for

preferring an appeal before the Tribunal. However, since the petitioners were

pursuing the remedy in this Court and further since one of the pleas of the

petitioners qua applicability of Rule 114A has been negatived owing to a

subsequent judgment of this Court, the petitioners would be entitled to approach

the Tribunal for reliefs, if any, entitled to qua their termination. If the petitioners

so approach the Tribunal within six weeks from today, the Tribunal shall

adjudicate the same treating the same to have been filed within time.

11. The writ petition is, therefore, dismissed with the liberty aforesaid.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 pp